THE TRUMP PUBLIC LANDS REVOLUTION: REDEFINING THE PUBLIC IN PUBLIC LAND LAW

Transcription

1 ARTICLES THE TRUMP PUBLIC LANDS REVOLUTION: REDEFINING THE PUBLIC IN PUBLIC LAND LAW BY MICHAEL C. BLUMM* & OLIVIER JAMIN** The Trump Administration s efforts to comprehensively dismantle Obama-era policies had special force in federal public land management. The disassembling included a substantial reduction in the size of national monuments, a jettisoning of protections for sage grouse habitat, and a widespread fostering of fossil fuel-friendly policies, such as ending leasing moratoria, attempting to revoke methane emission controls, and a scuttling hydraulic fracturing regulation. Congress was a willing partner in this deregulatory campaign, eliminating revised land-planning regulations, authorizing oil leasing in the Arctic National Wildlife Refuge, and threatening to codify in statutes the Administration s regulatory rollbacks in order to make them more permanent. Collectively, these initiatives amounted to the most substantial rollback in public lands protections in American history. This Article surveys these events in the early days of the Trump Administration. The effect was to attempt to revolutionize public land law in arguably undemocratic terms, as there was little evidence of widespread public support for the rollbacks of land protections or the championing of fossil fuel developments. The agenda also included persistent calls in both the Administration and in Congress for more state and local control over federal public land management. We think that the Trump revolution reflected an attempt to fundamentally redefine the public in public land law and policy, * Jeffrey Bain Faculty Scholar & Professor of Law, Lewis & Clark Law School. Thanks to Kathleen M. Blumm for excellent editorial assistance. Thanks also to the journalists at E&E News, on whose indefatigable reporting we relied heavily. ** LL.M. Candidate, J.D. 2017, Lewis & Clark Law School, B.A. Gonzaga University. [311]

2 312 ENVIRONMENTAL LAW [Vol. 48:311 narrowing the focus of governmental concern largely to those producing commodity production, especially fossil fuels. The long-term consequences are disturbing in terms of their potential costs and who will be saddled with paying them. Appendices to the Article detail the use of presidential authority to establish national monuments over the past four decades and a restoration agenda of action items that might inform a post-trump administration. I. INTRODUCTION II. ATTACKING NATIONAL MONUMENTS A. Bears Ears National Monument B. Cascade-Siskiyou National Monument III. RESISTING LANDSCAPE FEDERAL LAND PLANNING A. The Demise of BLM Planning B. Revising Sage Grouse Plans IV. FOSTERING FOSSIL FUEL DEVELOPMENT A. Rescinding the Coal and Offshore Oil and Gas Leasing Moratoria B. Scuttling the Methane Anti-Waste Rules C. Eliminating the Hydraulic Fracturing Rule D. Revoking the Cost of Carbon Rule E. Streamlining the National Environmental Policy Act V. CONCLUSION APPENDIX 1 NATIONAL MONUMENTS ESTABLISHED SINCE APPENDIX 2 TWENTY-EIGHT RESTORATION MEASURES FOR A POST-TRUMP ADMINISTRATION ERA I. INTRODUCTION The Trump Administration s natural resources policies promise to be the most revolutionary since the Harding Administration, 1 if not before. Pronouncing climate change to be a hoax, 2 President Trump quickly 1 The Harding Administration s Interior Secretary, Albert Fall, was convicted of bribery in the infamous Teapot Dome scandal. See infra note 217 and accompanying text. 2 Edward Wong, Trump Has Called Climate Change a Chinese Hoax. Beijing Says It Is Anything But., N.Y. TIMES (Nov. 18, 2016), The Trump transition team quickly targeted several documents on climate change and carbon regulation. See Kevin Bogardus & Sean Reilly, Trump Transition Targeted Climate Records, E&E NEWS: GREENWIRE (Sept. 25, 2017), (discussing efforts made by Trump s transition team to acquire specific documents and their subsequent denial); Oliver Milman, US Federal Department Is Censoring Use of Term Climate Change, s Reveal, GUARDIAN (Aug. 7, 2017), (discussing a series of s between staff members at the U.S. Department of Agriculture s National Resources Conservation Service suggesting that

3 2018] PUBLIC LANDS REVOLUTION 313 approved several controversial oil pipelines 3 and rescinded numerous conservation regulations. 4 The Administration also conducted review of climate change adaption be replaced by resilience to weather extremes ; the phrase reduce greenhouse gases be replaced by build soil organic matter, increase nutrient use efficiency ; and sequester carbon be replaced by build soil organic matter ); see also Adam Federman, Interior Department Scrubs Climate Change From Strategic Plan, INVESTIGATIVE FUND (Oct. 25, 2017), (discussing a leaked U.S. Department of the Interior strategic plan to exploit public lands for oil and gas development); Christa Marshall, Senior Officials Ordered Removal of Climate Change s, E&E NEWS: GREENWIRE (Dec. 11, 2017), (discussing a U.S. Department of Energy official s request to scrub the words climate change from research abstracts to satisfy the Trump Administration s proposed budget request). 3 See Timothy Cama, Trump Approves Keystone Pipeline, HILL (Mar. 24, 2017), Amy Harder & Christopher M. Matthews, Trump Administration Gives Final Approval for Dakota Access Pipeline, WALL STREET J. (Feb. 7, 2017), A federal court ruled that in approving the Dakota Access Pipeline, the U.S. Army Corps of Engineers violated the National Environmental Policy Act (NEPA) by failing to adequately assess potential oil spill risks, environmental justice concerns, and effects on tribal hunting and fishing rights. However, the court refused to enjoin the pipeline s continued operation pending NEPA compliance. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng rs, No (JEB), 2017 WL , at *12 (D.D.C. Oct. 11, 2017). 4 See David J. Hayes, Trump s Rush to Drill on Public Land Is the Opposite of America First, WASH. POST (Feb. 22, 2018), (discussing the Trump Administration s reversion to a fossil fuel-is-king approach pursued by the second Bush Administration, which recklessly offered oil and gas leases on the doorstep of sensitive landscapes near Arches and Canyonlands National Parks, Dinosaur National Monument, and Nine-Mile Canyon without conducting site visits or consulting managing agencies or the public; the Obama Administration consequently pursued reforms like master leasing plans that would reflect the views of local, state, tribal, and federal officials as well as require site visits, multidisciplinary decision-making processes, and public participation; however, the Trump Administration quickly jettisoned master leasing plans, resuming the Bush Administration s wholesale commitment to energy dominance, including offshore and Arctic leasing and leasing throughout sage grouse habitat, even though in 2016 more than half of the twenty-seven million acres under lease to the oil and gas industry lay idle.); see also Timothy Cama, Trump to Repeal Obama Fracking Rule, HILL (Mar. 15, 2017), (identifying various environmental regulations that President Trump targeted early in office, including fracking regulations, greenhouse gas emissions standards for cars, the Clean Power Plan, and the coalleasing moratorium for federal lands). See generally infra notes and accompanying text (discussing efforts to dismantle fracking regulations on public lands). In the first twelve months of the Trump Administration, the New York Times counted some sixty-seven environmental regulations under siege: thirty-three overturned, twenty-four more cutbacks in progress, and ten rollbacks stalled, mostly due to court actions. Nadja Popovich et al., 67 Environmental Rules on the Way Out Under Trump, N.Y. TIMES, (last updated Jan. 31, 2018) (listing all the targeted rules). According to a report by Public Citizen, the Trump Administration withdrew a record number of 457 rulemakings in its first six months of office, mostly from the Interior and Health and Human Services Departments. Maxine Joselow, Trump Has Rolled Back More Rules Than Any President Watchdog, E&E NEWS: GREENWIRE (Nov. 28, 2017), Among the rules withdrawn were fifteen endangered species listings and a plan to protect Florida s Biscayne Bay. See id. (discussing Public Citizen s Congress Watch report that illustrated the amount of rules President Trump has reversed); see Coral Davenport, Trump s Environmental Rollback Were Fast. It Could Get Messy in Court, N.Y. TIMES (Jan. 31, 2018), (suggesting that the Trump Administration s exemption of Florida from the opening up of the offshore to oil and gas leasing was vulnerable to legal challenge, and that North Carolina would challenge the initiative if it were not granted a similar exemption;

4 314 ENVIRONMENTAL LAW [Vol. 48:311 national monuments that led President Trump to attempt to reduce the acreage of Bears Ears National Monument by 85% and Grand Staircase- Escalante National Monument by nearly one-half, with a number of other monuments apparently slated for reductions in the future. 5 At the outset, however, it is important to recognize that the Trump public lands revolution requires, in significant measure, the assent of Congress, which possesses the ultimate constitutional authority over public land management. 6 Any executive authority must be delegated by Congress. 7 Congress exercised that constitutional authority in early 2017 when, through the formerly obscure Congressional Review Act 8 (CRA), it somewhat surprisingly vetoed an update of the Bureau of Land Management s (BLM) thirty-five-year-old regulations governing the approval of federal land plans. 9 This veto was a reminder of the fact that effectuating the Trump revolution will require a partnership between the President and his cabinet and also noting challenges to shrinking the Utah monuments, the rollback of sage grouse protections in federal land plans, and a challenge by the State of California to rescinding the hydraulic fracking regulation). Two commentators have suggested that President Trump s hostility to environmental regulations is a consequence of a systematic undervaluing or ignoring of the environmental benefits provided by those regulations. Cale Jaffe & Steph Tai, Trump s Disdain for Environmental Regulations Stems from His Misunderstanding, SLATE (May 11, 2017), But in addition to undervaluing the benefits of environmental regulation, the Trump Administration has also systematically undervalued the costs of fossil fuel mining and drilling, evident in its effort to eliminate consideration of the social cost of carbon. See infra discussion Part IV.D; see also The Hidden Costs of Fossil Fuels, UNION CONCERNED SCIENTISTS, (last revised Aug. 30, 2016) (discussing hidden costs of extraction, transporting, burning, and disposal). 5 See infra notes and accompanying text (discussing the Trump executive order on national monuments); 37, 65 and accompanying text (discussing the diminishment of Bears Ears and Grand Staircase-Escalante); and accompanying text (discussing Cascade- Siskiyou National Monument, slated for review). Promoting local control over federal public lands is a persistent theme both in the Trump Administration and Congress. See infra note 166 and accompanying text (noting the position of the Western Governors Association favoring state concerns over national concerns); 178 and accompanying text (discussing the Western Governors Association s claim that they are co-regulators of federal public lands); 314 and accompanying text (suggesting that empowering state and local officials influence over public lands serves the interests of local economic elites); see also Jonathan Thompson, The Danger of Local Hands on Public Lands, HIGH COUNTRY NEWS (Mar. 2, 2018), (warning against managing the reduced national monuments with committees dominated by local interests due to personal financial interests, suggesting that such conflicts of interests are an unavoidable part of life in small, rural communities ). 6 U.S. CONST. art. IV, 3, cl. 2 (quoted infra note 38). 7 See infra notes and accompanying text (discussing the Property Clause). 8 5 U.S.C (2012); see infra note 168 and accompanying text. The GOP repealed at least fourteen Obama rules using the CRA, which had been used only once before See Stephen Dinan, GOP Rolled Back 14 of 15 Obama Rules Using Congressional Review Act, WASH. TIMES (May 15, 2017), Recently, the Government Accountability Office announced that BLM land plans are subject to the CRA, which could lead to congressional vetoes of land plans opposed by local members of Congress. See U.S. GOV T ACCOUNTABILITY OFF., B , TONGASS NATIONAL FOREST LAND AND RESOURCE MANAGEMENT PLAN AMENDMENT 1 (2017), 9 See infra notes

5 2018] PUBLIC LANDS REVOLUTION 315 Congress. Credit or blame for the revolution will not therefore be the President s alone. Failure to understand the limits of executive authority over public lands may, however, undermine implementation of some parts of the Trump revolution. In particular, presidential authority to revoke or diminish national monuments is far from clear and has drawn serious legal challenges. 10 Although secretarial authority does exist to revise land plans or to revoke regulations like the Interior Department s fracking rule, that authority is fettered by the sometimes overlooked substantive requirement of the Administrative Procedure Act 11 (APA) that such changes must be rational and consistent with applicable environmental laws. 12 These requirements have sometimes proved to be surprisingly difficult judicial hurdles. 13 And while Congress has delegated considerable discretion to the Secretary of Interior to increase mineral leasing and to the Secretary of Agriculture to increase timber sales, 14 those actions also must comply with environmental laws like the National Environmental Policy Act 15 (NEPA) and the Endangered Species Act 16 (ESA), which have proved to be stumbling blocks to other deregulatory efforts affecting public land management. 17 However, the Trump revolution also promised a partial dismantling of 10 See infra notes 37 50, and accompanying text U.S.C , , 1305, 3105, 3344, 4301, 5335, 5372, See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016) ( Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. ). 13 See infra note See Mineral Leasing Act, 30 U.S.C (2012) (delegating mineral leasing authority to the Secretary of the Interior); see also Multiple Use-Sustained Yield Act of 1960, 16 U.S.C (2012); National Forest Management Act of 1976, 16 U.S.C. 472a, 521b, 1600, (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No , 88 Stat. 476 (1974)) (delegating timber-sale authority to the Secretary of Agriculture); 36 C.F.R (b)(1)(2) (2017) (explaining the Forest Service-related functions delegated to the Secretary of Agriculture). Timber sale increases also occurred as a consequence of the so-called Healthy Forests Restoration Act of 2003, 16 U.S.C , discussed infra note National Environmental Policy Act of 1969, 42 U.S.C h (2012). 16 Endangered Species Act of 1973, 16 U.S.C ; see Daniel J. Rohlf, Professor of Law, Lewis & Clark Law Sch., Presentation at the Environmental Law Symposium: Environmental Law Under Trump (Apr. 6, 2018) (explaining a proposal to change a regulation implementing section 4(d) of the statute to reduce protection for threatened species). 17 See, e.g., W. Watersheds Project v. Kraayenbrink, 538 F. Supp. 2d 1302, 1305 (D. Idaho 2008) (successfully challenging an attempt to water down grazing regulations on BLM lands), aff d in part and remanded, 632 F.3d 472 (9th Cir. 2011); California ex rel. Lockyer v. U.S. Dep t of Agric., 459 F. Supp. 2d 874, 919 (N.D. Cal. 2006) (successfully challenging the so-called State Petitions Rule for roadless area protection of Forest Service lands), aff d, 575 F.3d 999 (9th Cir. 2009); Nw. Ecosystem All. v. Rey, 380 F. Supp. 2d 1175, (W.D. Wash. 2005) (successfully challenging a government attempt to eliminate the survey and manage rules of the Northwest Forest Plan); Fund For Animals v. Norton, 294 F. Supp. 2d 92, 96 97, (D.D.C. 2003) (successfully challenging an attempt by the Secretary of the Interior to overturn a ban on snowmobiles in Yellowstone National Park), enforcement denied, 390 F. Supp. 2d 12 (D.D.C. 2005).

6 316 ENVIRONMENTAL LAW [Vol. 48:311 NEPA, and Congress seemed prepared to dilute NEPA s application to public land developments as well. 18 The Trump revolution s threat to substantially increase fossil fuel production from federal lands will increase use-monopolies, since mineral leasing is often incompatible with wildlife and water-quality protection. 19 Revising land plans to allow for more leasing and diminish sage grouse protection would reflect the ascendancy of states rights in public land law, at least where the plans serve local commodity production interests. 20 These results would carry some significant democratic irony, since the rural economic interests arguably served by these developments are vastly outnumbered by urban preservationist concerns in western cities, and the West is the most urbanized region of the country. 21 This Article considers the Trump revolution in public land law from three primary perspectives. First, we examine the Trump attack on the national monuments, which is arguably grounded on a mistaken assumption of presidential authority under the Constitution s Property Clause. Second, we explain the demise of revised BLM planning regulations and the impending revisions of Federal Land Policy and Management Act 22 (FLPMA) land plans affecting sage grouse, for they reveal an Administration which considers parts of the public those with substantial local clout in rural areas to be more important than the more numerous recreational and preservationist community that public lands serve. Third, we assess measures affecting leasing of public lands for fossil fuel production, where the Trump Administration s policies will have their most immediate effects. Although President Trump signaled some time ago that he did not support public land sales, 23 he made no promise not to despoil them. He seems to be prepared to make public land mineral leasing and the creation of accompanying use-monopolies on public lands the centerpiece of his version of energy dominance. 24 This Article concludes that if the Trump revolution s efforts to increase commodity production on federal public lands succeed, the result will mark a fundamentally undemocratic redefinition of the public in public land law. 18 See infra notes and accompanying text. 19 Effects on Resources, U.S. FISH & WILDLIFE SERV., (last updated Nov. 10, 2016). 20 See Scott Streater, States Meet with Zinke Panel on Changes to Federal Plans, E&E NEWS: GREENWIRE (July 12, 2017), 21 See infra note 33 and accompanying text (describing overwhelming public sentiment favoring retention of national monuments); see also RICHARD WHITE, IT S YOUR MISFORTUNE AND NONE OF MY OWN : A HISTORY OF THE AMERICAN WEST 184, 391 (1991) (describing how the West became the most urbanized region of the country beginning in the 1880s); William M. Salka, Urban-Rural Conflict Over Environmental Policy in the Western United States, 31 AM. REV. PUB. ADMIN. 33, 34 (2001). 22 Federal Land Policy and Management Act of 1976, 43 U.S.C (2012). 23 Reena Flores, Donald Trump: Don t Hand Federal Lands to States, CBS NEWS (Jan. 23, 2016), 24 See Tom DiChristopher, Trump Wants America To Be Energy Dominant. Here s What That Means, CNBC (June 28, 2017),

7 2018] PUBLIC LANDS REVOLUTION 317 II. ATTACKING NATIONAL MONUMENTS The Antiquities Act of authorizes the President to establish national monuments on federal lands to protect significant natural, cultural, or scientific features. 26 Over the years, nearly every president since Theodore Roosevelt has invoked the statute to protect federal lands of historical, scientific, and ecological interest. 27 Monuments have been as large as the Grand Canyon and have protected fish habitat as well as historic objects, both of which have been upheld by the United States Supreme Court. 28 Some Antiquities Act reservations proved to be controversial, as in the case of Jackson Hole. 29 Many more have been spectacular successes, evidenced by their frequent subsequent ratification by Congress as national parks. 30 No court has ever invalidated a monument proclamation for being in excess of the authority Congress delegated in the 1906 statute. Despite the significant conservation achievements of the Antiquities Act, President Trump issued Executive Order in April 2017, directing U.S.C (Supp. II 2015). For the definitive legal study of the statute s first century, see Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 GA. L. REV. 473 (2003) U.S.C (a) (b) ( The President may, in the President s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments... [and] may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected. ). 27 Sixteen presidents have used the Antiquities Act to designate 157 national monuments. See infra app. (listing all monuments proclaimed since 1978); see also Jayni Foley Hein, Monumental Decisions: One-Way Levers Towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act, 48 ENVTL. L. 125, (2018); Olivia B. Waxman, The Real History of the Law Behind President Trump s Executive Order on National Monuments, TIME (Apr. 26, 2017), For a detailed history of the Antiquities Act, see THE ANTIQUITIES ACT: A CENTURY OF AMERICAN ARCHAEOLOGY, HISTORIC PRESERVATION, AND NATURE CONSERVATION (David Harmon et al. eds., 2006). 28 See, e.g., Cappaert v. United States, 426 U.S. 128, 147 (1976) (upholding the Devil s Hole National Monument and its fish protection purpose); Cameron v. United States, 252 U.S. 450, (1920) (upholding the designation of the Grand Canyon National Monument, in a suit by former Territorial Representative and future Senator Ralph Cameron). 29 See Lisa Raffensperger, The Highs and Lows of the Antiquities Act, NAT L PUB. RADIO (May 23, 2008), The Jackson Hole National Monument, proclaimed by President Franklin Roosevelt in 1943, was bitterly opposed by local cattle ranchers, who, heavily armed and led by Hollywood actor Wallace Beery, protested by driving over 500 cattle across the monument without a federal permit just months of the establishment of the monument. Nonetheless, within seven years Congress incorporated the monument into Grand Teton National Park. See DOUGLAS BRINKLEY, RIGHTFUL HERITAGE: FRANKLIN D. ROOSEVELT AND THE LAND OF AMERICA (2016); Michael C. Blumm, The Nation s First Forester-in-Chief: The Overlooked Role of FDR and the Environment, 33 J. LAND USE & ENVTL. L. 25 (2017) (reviewing BRINKLEY, supra). 30 Michael Blumm & Hillary Hoffmann, Op-Ed, Obama s National Monument Designations Were Lawful, Not Land Grabs, L.A. TIMES (Jan. 23, 2017), Robert W. Righter, National Monuments to National Parks: The Use of the Antiquities Act of 1906, NAT L PARK SERV., (last modified Mar. 5, 2005). Some fifty-two national monuments are now national parks. See infra note 88 and accompanying text.

8 318 ENVIRONMENTAL LAW [Vol. 48:311 Interior Secretary Ryan Zinke to review monuments over 100,000 acres established during the previous twenty years and those created or expanded without adequate public outreach and coordination with relevant stakeholders that may also create barriers to achieving energy independence, restrict public access to and use of Federal lands, burden State, tribal, and local governments, and otherwise curtail economic growth. 31 The executive order did instruct the Secretary to act consistent with law, and the text of the Antiquities Act includes none of the directives contained in the Trump executive order. 32 Secretary Zinke proceeded to evaluate twenty-seven monuments; his review generated some two million public comments, 98% of which were opposed to making any changes to them. 33 Despite the overwhelming public opposition to reducing their size, Secretary Zinke recommended downsizing several monuments. 34 In October 2017, the Interior Department released its 31 See Exec. Order No. 13,792, 82 Fed. Reg. 20,429, 20,429 (May 1, 2017) (signed Apr. 26, 2017). The President s order was riddled with inaccuracies and erroneous assumptions. See Jonathan Thompson, Fact-Checking Trump s Antiquities Act Order, HIGH COUNTRY NEWS (Apr. 26, 2017), (pointing out errors in the order and in statements by its chief congressional supporter, Senator Orrin Hatch (R-Utah), concerning public participation, local involvement, effects on school financing, locking away one-quarter of the land of San Juan County, and allegedly putting over 265 million acres of land under federal control). The largest newspaper in Utah called upon Senator Hatch to retire in part due to his role in diminishing the monuments, claiming that the actions had no constitutional, legal or environmental logic. Andr Chung, Editorial, Why Orrin Hatch Is Utahn of the Year, SALT LAKE TRIB. (Dec. 25, 2017), (citing Hatch s role in the tax bill and his utter lack of integrity and noting that man of the year could be for ill deeds as well as good ones). 32 Exec. Order No. 13,792, 82 Fed. Reg. at 20,430 ( The final report shall include recommendations for such Presidential actions, legislative proposals, or other actions consistent with law as the Secretary may consider appropriate to carry out the policy set forth in section 1 of this order. ). 33 See generally Review of Certain National Monuments Established Since 1996; Notice of Opportunity for Public Comment, 82 Fed. Reg. 22,016 (May 11, 2017); Jennifer Yachnin, Public Comments Flood Interior as Deadline Nears, E&E NEWS PM (July 10, 2017), Although the Department of the Interior announced that the public submitted about 1.3 million comments, environmental groups claimed there were more than 2.5 million comments. See Valerie Volcovici, U.S. Interior Department Receives Over 2 Million Comments on Monument Review, REUTERS, July 11, 2017, 34 Secretary Zinke s report of August 2017 contained no specifics released to the public about which monuments would have their boundaries reduced. But reports later surfaced indicating that the Secretary recommended at least three monuments for boundary reduction: Bears Ears, Cascade-Siskiyou, and Grand Staircase-Escalante (proclaimed by President Clinton in 1996). See Juliet Eilperin & Darryl Fears, Interior Secretary Recommends Trump Alter at Least Three National Monuments, Including Bears Ears, WASH. POST (Aug. 24, 2017), Later, reports indicated that as many as six monuments would be downsized. See, e.g., Kate Schimel & Rebecca Worby, Details Emerge on Proposed Monument Cutbacks, HIGH COUNTRY NEWS (Aug. 24, 2017), Jennifer Yachnin, Zinke Recommends Shrinking as Many as 6 Sites, E&E NEWS: GREENWIRE (Sept. 18, 2017), (also including Gold Butte National Monument in Nevada as well as two marine monuments slated for downsizing and recommending management changes to four other monuments). President Trump s proclamations of December 4, 2017, however, only

9 2018] PUBLIC LANDS REVOLUTION 319 final report on energy burdens, another response to the Trump executive order. 35 The report called for agency initiatives to alleviate or eliminate agency actions inhibiting energy development, and perhaps unsurprisingly, recommended a long list of policies to facilitate development of oil and gas. 36 On December 4, 2017, President Trump proceeded to slash the size of Bears Ears National Monument by 85% and cut the size of Grand-Staircase Escalante by nearly one-half. 37 Presidential authority over public lands involves the Constitution s Property Clause, which allocates exclusive authority to Congress and doesn t mention executive authority. 38 The Supreme Court has uniformly held that the Property Clause is without limitation. 39 Thus, presidential authority over public lands must be the product of delegations from Congress. Congress included no grant of presidential authority to revoke or substantially diminish national monuments in the Antiquities Act. 40 Whether one president may revoke a monument proclaimed by his predecessor was raised in 1938 by Franklin Delano Roosevelt (FDR) concerning the Castle-Pinckney National Monument in South Carolina, established by Calvin Coolidge a decade before. 41 Attorney General Homer Cummings, in a formal opinion, instructed FDR that he lacked revocation reduced the size of the Bears Ears and Grand Staircase-Escalante Monuments. See infra notes 37, 65 and accompanying text. 35 See U.S. DEP T OF THE INTERIOR, FINAL REPORT: REVIEW OF THE DEPARTMENT OF THE INTERIOR ACTIONS THAT POTENTIALLY BURDEN DOMESTIC ENERGY 3 (2017), V77W. 36 Id. at See Proclamation No. 9681, 82 Fed. Reg. 58,081 (Dec. 8, 2017) (signed Dec. 4, 2017); Proclamation No. 9682, 82 Fed. Reg. 58,089 (Dec. 8, 2017) (signed Dec. 4, 2017); see Jennifer Yachnin, Trump Slashes 2 Utah Sites, E&E NEWS: GREENWIRE (Dec. 4, 2017), (discussing the President s plan to divide Bears Ears, formerly 1.35 million acres, into two smaller sites (the Indian Creek Unit, with 72,000 acres, and the Shash Jaa Unit, with 130,000 acres) and to divide Grand Staircase-Escalante into three smaller units (the Grand Staircase Unit, with 210,000 acres; the Kaiparowitz Unit, with 551,000 acres; and the Escalante Canyons Unit, with 243,000 acres)); see also infra note 65 and accompanying text. 38 U.S. CONST. art. IV, 3, cl. 2 ( The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. ); Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917) ( Not only does the Constitution commit to Congress the power to dispose of and make all needful rules and regulations respecting the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court have gone upon the theory that the power of Congress is exclusive and that only through its exercise in some form can rights in land belonging to the United States be acquired. (citation omitted)). 39 See, e.g., United States v. City & County of San Francisco, 310 U.S. 16, (1940); United States v. Gratiot, 39 U.S. (14 Pet.) 526, 537 (1840); see also Michael C. Blumm & Olivier Jamin, The Property Clause and Its Discontents: Lessons from the Malheur Occupation, 43 ECOLOGY L.Q. 781, (2016) (discussing the Supreme Court s Property Clause interpretations). 40 The language of the statute, supra note 26, authorizes the President to declare or reserve monuments but not to modify or revoke them. 41 Proclamation No. 1713, 43 Stat (1924).

10 320 ENVIRONMENTAL LAW [Vol. 48:311 authority. 42 The Cummings opinion reflected the Constitution s allocation of authority between the executive and legislative branches, examining public land statutes Congress enacted during the Antiquities Act s era including the 1897 Organic Act 43 for national forests and the 1910 Pickett Act 44 for lands outside national forests in which revocation authority was specifically granted to the executive. 45 The opinion contrasted these statutes with the Antiquities Act, which included no express revocation authority. 46 Since the Supreme Court has repeatedly ruled that the Property Clause gives Congress plenary authority over federal public lands, 47 executive authority over public lands must be authorized by Congress. With no express authority for revocation in the Antiquities Act, the Attorney General was justified in concluding that the President lacked that authority. The question of the President s ability to modify monument boundaries was not at issue in the Cummings opinion, and presidents later did modify several monuments, including FDR s modification of the Grand Canyon and Olympic monuments, 48 and John F. Kennedy s modification of Bandelier 42 See Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att y Gen. 185, (1938). For some reason, the Cummings opinion is not available on the Department of Justice s website, which usually contains all Attorney General opinions. 43 Act of June 4, 1897, ch. 2, 30 Stat. 11, (codified as amended at 16 U.S.C , 551 (2012)). 44 Act of June 25, 1910, ch. 421, 36 Stat. 847 (repealed 1976). 45 Mark Squillace et al., Presidents Lack the Authority to Abolish or Diminish National Monuments, 103 VA. L. REV. ONLINE 55, 58 (2017); see Mark Squillace, The Looming Battle over the Antiquities Act, HARV. L. REV. BLOG (Jan. 6, 2018), (discussing past controversies over the use of the Antiquities Act in some detail); see also Sean B. Hecht & John Ruple, Opinion, Congressional Attack on National Monuments Ignores America s Conservation History, HILL (Oct. 16, 2017), (criticizing H.R. 3990, a bill that would make it harder for presidents to create new monuments and expressly authorize reductions in size as being grounded on the mistaken belief that Congress never intended the Antiquities Act to authorize protection of natural geographic features when the historical record shows otherwise); Adam M. Sowards, Reckoning with History: The Antiquities Act Quandary, HIGH COUNTRY NEWS (Feb. 22, 2018), (discussing controversies over the Jackson Hole monument and Alaska monuments). 46 Proposed Abolishment of Castle Pinckney National Monument, 39 Op. Att y Gen. at 188 (noting that both statutes not only authorized the President to withdraw public lands for particular purposes but also gave the President authority to revoke and/or modify the withdrawals); Squillace et al., supra note 45, at 58 ( Unlike the Pickett Act and the Forest Service Organic Administration Act, the Antiquities Act withholds authority from the President to change or revoke a national monument designation. ); see also ALEXANDRA M. WYATT, CONG. RESEARCH SERV., R44687, ANTIQUITIES ACT: SCOPE OF AUTHORITY FOR MODIFICATION OF NATIONAL MONUMENTS 3 4 (2016), 47 U.S. CONST. art. IV, 3, cl. 2 (language reprinted supra note 38); see supra notes and sources cited therein (Supreme Court interpretations). 48 See Proclamation No. 2393, 3 C.F.R. 32 (Supp. 1940) (excluding approximately 71,854 acres from the Grand Canyon National Monument). Today the national park comprises more than 1.2 million acres. NAT L PARK SERV., 2016 PARK PROFILE 1, (last visited Apr. 7, 2018). FDR transferred the Olympic Monument to the National Park Service in 1933, and it became a national park in FDR then extended the park boundaries in both 1940 and See GUNNAR O. FAGERLUND, OLYMPIC NATIONAL PARK (1954), (ebook). FDR s role in establishing national monuments was

11 2018] PUBLIC LANDS REVOLUTION 321 monument. 49 But in 1976, in FLPMA Congress seemed to foreclose any implied presidential authority to revoke or modify the boundaries of national monuments. 50 Presidents Clinton and Obama invoked the Antiquities Act with some frequency. Clinton established nineteen monuments, the most controversial of which was the Grand Staircase-Escalante in The state government in Utah, if not its populace, has sought a recession of that monument and considerable. See BRINKLEY, supra note 29, at app. C (cataloguing the twenty-nine national monuments and parks (the latter all approved by Congress) during FDR s Administration). 49 See Proclamation No. 3539, 3 C.F.R. 62 (Supp. 1963) (adding one parcel of land and excluding another at Bandelier National Monument). 50 See id. 1714(j) ( The Secretary shall not make, modify, or revoke any withdrawal created by Act of Congress; make a withdrawal which can be made only by Act of Congress; modify or revoke any withdrawal creating national monuments under the [Antiquities Act]. ); see also infra notes and accompanying text. The legislative history makes clear that section 204(j) was part of a plan to constrain executive branch withdrawal authority, and instead exclusively reserve to Congress the power to modify or revoke monument legislations. For a detailed explanation of the legislative history, see Squillace et al., supra note 45, at The House Report describing section 204 explained that: With certain exceptions, [the bill] will repeal all existing law relating to executive authority to create, modify, and terminate withdrawals and reservations. It would reserve to the Congress the authority to create, modify, and terminate withdrawals for national parks, national forests, the Wilderness System, Indian reservations, certain defense withdrawals, and withdrawals for National Wild and Scenic Rivers, National Trails, and for other national recreation units, such as National Recreation Areas and National Seashores. It would also specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act and for modification and revocation of withdrawals adding lands to the National Wildlife Refuge System. H.R. REP. NO , at 9 (1976) (emphasis added). 51 Proclamation No. 6920, 3 C.F.R. 64 (1997); see also Robert B. Keiter, The Monument, the Plan, and Beyond, 21 J. LAND RESOURCES & ENVTL. L., 521, (2001). Studies show that although the Grand Staircase-Escalante designation may have cost about 600 coal mining jobs and about $100 million in state and local tax revenue, the overall economic effect on the local communities was largely positive. See Phil Taylor, Grand Staircase-Escalante Winners and Losers, E&E NEWS: GREENWIRE (July 14, 2016), (also noting that 45% of Utah voters think the monument was a good thing, compared to 25% who said it was a bad thing. Businesses have experienced a 15% 20% growth since the creation of the monument. From 2001 to 2014, service jobs increased from 4,002 to 5,682; while farming, logging, manufacturing and mining jobs remained flat.); see also Blumm & Hoffmann, supra note 30 (noting that nearby population increased by 8%, jobs by 38% and real per capita by 30% in the years since the designation of Grand Staircase-Escalante, citing a study by Headwaters Economics).

12 322 ENVIRONMENTAL LAW [Vol. 48:311 gaining control over it for the last two decades. 52 Those efforts often rested on shaky legal grounds. 53 Somewhat surprisingly, the Bush Administration defended the Clinton monuments, and uniformly succeeded. 54 No president has in fact attempted to rescind his predecessor s monument decisions, perhaps a reflection of the fact that FLPMA banned the executive from revoking or substantially modifying existing national monuments. 55 FLPMA did not attempt to curtail the President s authority to establish national monuments, and over the last four decades presidents have done so with some frequency. 56 We focus on two monument proclamations of President Obama: Bears Ears in southeastern Utah and Cascade-Siskiyou in southwestern Oregon and northern California. A. Bears Ears National Monument In late 2016, President Obama established Bears Ears National Monument in southeastern Utah, a 1.35 million-acre area of deep sandstone canyons, desert mesas, and meadow mountaintops, constituting some of the 52 Rick Bowmer, Strong Emotions Reignited on 20th Anniversary of Utah Monument, CBS NEWS (Sept. 18, 2016), Mining companies have long tried to develop coal mining projects in the Kaiparowitz Plateau, where the Southern California Edison Company proposed building a 3,000 megawatt coal-fired electric plant in the 1970s. See Heidi McIntosh, Commentary, Utah May Be Trading a Dinosaur Wonder for a Coal Mine, SALT LAKE TRIB. (Aug. 24, 2017), Grace Lichtenstein, Utah Eager for Big Power Plant, N.Y. TIMES (Aug. 3, 1975), 53 See Blumm & Jamin, supra note 39, at (explaining that Utah s arguments based on equal sovereignty and equal footing had little judicial prospect, given the long history of Supreme Court decisions rejecting to expand the scope of these doctrines). See generally John D. Leshy, Are U.S. Public Lands Unconstitutional?, 69 HASTINGS L.J. 499 (2018) (providing a comprehensive history of public lands law, concluding that arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary). 54 See, e.g., Tulare County v. Bush, 306 F.3d 1138, (D.C. Cir. 2002) (rejecting the argument President Clinton did not identify objects of historic and scientific interest in establishing the Giant Sequoia National Monument); Mountain States Legal Found. v. Bush, 306 F.3d 1132, (D.C. Cir. 2002) (dismissing a suit challenging six western monuments designated by President Clinton). 55 See Squillace et al., supra note 45, at 60 68; see also infra notes and accompanying text. Some analysts who have claimed that the president does in fact have authority to modify or revoke monuments either ignore FLPMA, see JOHN YOO & TODD GAZIANO, AM. ENTER. INST., PRESIDENTIAL AUTHORITY TO REVOKE OR REDUCE NATIONAL MONUMENT DESIGNATIONS 1, 10, 19 (2017), or question whether courts will rely on the clear legislative history, see James R. Rasband, Stroke of the Pen, Law of the Land?, in PROCEEDINGS OF THE 63RD ANNUAL ROCKY MOUNTAIN MINERAL LAW INSTITUTE (Rocky Mountain Mineral Law Found., Special Inst. 2017) (concluding that the President lacks authority to revoke monuments but may modify their boundaries); Richard H. Seamon, Dismantling Monuments (Sept. 2, 2017) (unpublished manuscript), 56 See Squillace, supra note 25, at ; see also infra app.

13 2018] PUBLIC LANDS REVOLUTION 323 most significant cultural landscapes in the United States. 57 According to the proclamation: Abundant rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts provide an extraordinary archaeological and cultural record that is important to us all, but most notably the land is profoundly sacred to many Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. 58 There is evidence of native habitation in the area as far back as 13,000 years ago. 59 In 2015, an intertribal coalition of nearby tribes petitioned the President to use his Antiquities Act authority to protect the area, and President Obama s 2016 proclamation established an unprecedented intertribal commission to advise the federal management agencies the U.S. Forest Service and the Bureau of Land Management on a plan to govern the monument. 60 However, under Trump s 2017 executive order, the Secretary of Interior reviewed some twenty-seven large national monuments established during the previous two decades including Bears Ears which allegedly were created or expanded without adequate public involvement, restrict public access, or curtail energy production or economic growth. 61 Although none of these criteria are evident in the Antiquities Act, 62 and the Secretary received over 685,000 public comments in favor of maintaining the See generally Proclamation No. 9558, 3 C.F.R. 402 (2017) (signed Dec. 28, 2016). 58 The Bears Ears 2016 proclamation was almost lyrical: Rising from the center of the southeastern Utah landscape and visible from every direction are twin buttes so distinctive that in each of the native languages of the region their name is the same: Hoon Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe, or Bears Ears. For hundreds of generations, native peoples lived in the surrounding deep sandstone canyons, desert mesas, and meadow mountaintops, which constitute one of the densest and most significant cultural landscapes in the United States. Id. 59 Id.; see Stephen Nash, At Bears Ears in Utah, Heated Politics and Precious Ruins, N.Y. TIMES (July 25, 2017), Charles Wilkinson, The Proposed Bears Ears National Monument, COLO. PLATEAU ADVOCATE MAG., (last visited Apr. 7, 2018) (discussing the history of Bears Ears and the monument proposed by the coalition of Indian tribes). 60 Mathew Gross, Tribes Formally Present Bears Ears Proposal to Obama Administration, S. UTAH WILDERNESS ALLIANCE, (last visited Apr. 7, 2018). For an insightful examination of the role of the tribal coalition in proposing the Bear Ears monument, see Sarah Krakoff, Public Lands, Conservation, and the Possibility of Justice, 53 HARV. C.R.-C.L. L. REV. (forthcoming 2018), (also explaining how conservation laws like the Antiquities Act historically divested tribes of their lands and resources the dark side of conservation history ). 61 See supra notes and accompanying text (discussing Trump s executive order and ensuing actions). 62 The Antiquities Act never mentioned adequate public outreach, energy independence, curtail economic growth, or any other criteria presented by President Trump in the executive order. See 54 U.S.C (Supp. II 2015).

14 324 ENVIRONMENTAL LAW [Vol. 48:311 monument, 63 in his August 2017 report to the President, Secretary Zinke recommended diminishing Bears Ears boundaries by an uncertain amount. 64 President Trump proceeded to substantially reduce the size of both Bears Ears and Grand Staircase-Escalante Monuments in December 2017, in a proclamation signed in the Utah state capitol that eliminated some two million monument acres, claiming that the cuts were so important for states rights, and that distant bureaucrats in Washington, D.C. don t know your [sic] land, and... don t care for your land like you do. 65 Although there 63 Virginia Cramer, More Than 685,000 Comments Submitted in Support of Bears Ears National Monument in Less Than 15 Days, SIERRA CLUB (May 25, 2017), JM7E. 64 See supra note 34 and accompanying text. Zinke s report charged that modern uses of the Antiquities Act have not clearly and consistently defined [the] objects to be protected and objected to the protection of viewsheds and watersheds as beyond the statutory authority, apparently as not being objects of historic and scientific interest. Memorandum for the President from Ryan K. Zinke, Sec y of the Interior, on the Final Report Summarizing Findings of the Review of Designations Under the Antiquities Act 6 7 (Dec. 5, 2017), [hereinafter Zinke Report] (claiming that landscape designations unnecessarily restrict traditional land uses like grazing, timber production, mining, fishing, hunting, recreation, and other cultural uses ). Zinke was particularly concerned about potential grazing restrictions (even though he acknowledged that it was uncommon for monument proclamations to prohibit grazing), restrictions on motorized vehicle access, a perception by private inholders that their land is also encumbered by monument designations that might limit access to their land and economic activity outside of their lands (without providing any examples), and the apparently outsized influence of well-funded non-governmental organizations favoring monument designations, which contributed some 2.6 million comments, far outnumbering local voices. Id. at 7 9. He even suggested that monuments created problems for access to and protection of tribal sacred sites and wood gathering to be undertaken by motorized vehicles, ignoring the fact that a coalition of tribes proposed the Bears Ears monument. Id. at 9. Zinke also maintained that the Bear Ears monument contains many objects that are common or otherwise not of particular scientific interest. Id. at 10. He faulted the expanded Cascade-Siskiyou monument for containing an alleged 30% private lands within its exterior boundary, for including a substantial number of federal Oregon and California lands managed by BLM (claiming these lands were set aside for permanent forest production, but see infra notes and accompanying text), for grazing buy-outs (failing to explain that these were from willing sellers), and for limiting off-road vehicles (complaining about the lack of suitable roads, due to a lack of maintenance). Id. at Remarks on Signing Proclamations Affecting Prior Designations Under the American Antiquities Act of 1906 in Salt Lake City, Utah, 2017 DAILY COMP. PRES. DOC. 1 (Dec. 4, 2017); see Jennifer Yachnin, Shrinking Sites Vital for States Rights Trump, E&E NEWS: GREENWIRE (Dec. 4, 2017), (quoting Trump); Yachnin, supra note 37 (quoting Trump); see also supra note 37 and accompanying text (detailing Trump s proclamation). Within days of the Trump proclamation, it appeared likely that the operator of the nation s only uranium processing mill would file new uranium mining claims in the area. See Jennifer Yachnin, Former Bears Ears Land Could Be Open for Uranium Mining, E&E NEWS: GREENWIRE (Dec. 11, 2017), (citing a Washington Post story). For a summary of the long and sorry story of uranium mining on tribal lands nearby, especially on the Navajo reservation, see generally Jacqueline Keeler, Trump s Message for Tribes: Let Them Eat Yellowcake, HIGH COUNTRY NEWS (Dec. 12, 2017), (noting that the Utah legislature claimed that the monument would destroy the uranium industry in the state, presumably out of fear that the monument plan would restrict hauling of uranium through the monument to and from the White Mesa Uranium Mill). Senator Bishop, a strong opponent of the Bears Ears designation, announced plans to fast-track legislation that would codify President Trump s